[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 7, 2009
No. 08-16627 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-60193-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER RAMOS-TIRSO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 7, 2009)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Javier Ramos-Tirso pled guilty in the district court to illegal re-entry into the
United States after deportation and removal, in violation of 8 U.S.C. § 1326(a) and
(b)(2), and the court sentenced him to a prison term of 46 months. He now appeals
his sentence, arguing that it is substantively unreasonable because a downward
variance from the Guidelines sentence range of 46 to 57 months would have been
sufficient to serve the purposes of sentencing, given the nature of his offense and
his family circumstances.
We review a sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Reasonableness
review requires the application of an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, __, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). We
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for
any deviation from the Guidelines range.
Id. at __, 128 S.Ct. at 597. If, as in this case, the district court’s sentencing
decision is procedurally reasonable, our analysis turns to the substantive
reasonableness of the sentence. Id.
“In reviewing the ultimate sentence imposed by the district court for
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reasonableness, we consider the final sentence, in its entirety, in light of the
3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).
“We may find that a district court has abused its considerable discretion if it has
weighed the factors in a manner that demonstrably yields an unreasonable
sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). “In this
Circuit, this Court presumes that a sentence within the guidelines [sentence] range
is reasonable, but the presumption may be rebutted by the circumstances of a
particular case viewed in light of the § 3553(a) factors.” United States v. Sarras,
No. 08-11757, manuscript op. at 57 (11th Cir. June 16, 2009). The expectation of
reasonableness ordinarily accorded to a sentence imposed within the sentence
range is tantamount to a rebuttable presumption of reasonableness. Id. at 55-56.
Moreover, we have held that comparing the sentence imposed against the statutory
maximum sentence is one indication of reasonableness. United States v. Valnor,
451 F.3d 744, 751-52 (11th Cir. 2006).
Pursuant to § 3553(a), the sentencing court must impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection,” namely to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from future crimes of the defendant, and provide the
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defendant with needed educational or vocational training or medical care. See 18
U.S.C. § 3553(a)(2). The court must also consider the following factors in
determining a particular sentence: the nature and circumstances of the offense and
the history and characteristics of the defendant, the kinds of sentences available,
the sentencing guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwanted sentencing disparities, and the need to
provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
Ramos-Tirso has not carried his burden of establishing that his sentence of
46 months, which was at the low-end of the Guidelines sentence range and well
below the statutory maximum of 20 years’ imprisonment, was substantively
unreasonable. The record shows that the district court considered his arguments
for a downward variance and had a reasoned basis for determining that a sentence
at the low-end sentence range was sufficient, but not greater than necessary, to
provide deterrence and just punishment.
AFFIRMED.
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